B. Communication in Connection with Debt Collection Under the Fdcpa

• Jurisdiction: New York

B. Communication in Connection With Debt Collection Under the FDCPA²³

Within five days of the debt collector's initial communication with the consumer in connection with the collection of any debt, the collector must send the consumer a written notice in accord with the provisions of 15 U.S.C. § 1692g(a)(1)–(5). Attorneys handling collection cases should adhere to the requirements of this section, as the courts have held that an attorney will be considered a "debt collector" if he or she has "regularly" collected or attempted to collect debts. In Stojanovski v. Strobl & Manoogian, P.C.,²⁴ the court held that a law firm was a "debt collector" even though its collection practice was less than 4% of its total business. The U.S. Supreme Court case of Heintz v. Jenkins²⁵ held that the Fair Debt Collection Practices Act applied not only to the debt collection activities of lawyers but also to the litigation and judgment enforcement phases of debt collection activities.²⁶

Section 1691 should be read in connection with §§ 1692e(11) and 1692g. Improper communications with consumer debtors have been the subject of numerous lawsuits and attempts by debtors to use violations as a bargaining chip to obtain a discount on the debt or to dismiss the lawsuit. Section 1692e(11) requires that the debt collector

disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

You should provide the required notices in all verbal and written communications, and all documents that do not qualify as formal pleadings (e.g., a Subpoena is not technically a pleading).

Section 1692g requires a notice to be given to the consumer debtor within five days after the first "communication." This notice is designed to give the consumer debtor an opportunity to dispute the debt. The notice should be given within five days after the first "communication," whether that communication is oral or in writing. Section 1692g requires:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

No specific notice has been approved by the courts or by the Federal Trade Commission or Consumer Financial Protection Bureau, so the use of any notice is a risk to the user...